Laws of War/Laws In War

War can only be waged under certain legal settings. This concept is known as Jus in Bello. The UN Security Counsel, under the collective security system provided for in Article 24 of the UN Charter, to maintain peace and security. States that are members of the UN are obligated to carry out the decisions made by the UN Security Counsel under Article 25.

Res. 1441 did not specifically state what action the UN would take if Iraq did not comply with its obligation to disarm. However, Resolution 678 did provide authorization to “use all means necessary” to enforce previous UN resolutions, however most resolutions prior to 1991 (when the resolution was passed) applied to Kuwait. While Resolution 1441 and 678 might have given the UN Security Counsel the authority to at least consider waging war against Iraq if the weapons inspectors reported that Iraq did not comply with the mandate, these resolutions did not give the United States authorization to wage war against Iraq without UN support.

The use of force by a state is justified in few circumstances. A state can only wage war without a UN Security Counsel mandate when acting in self-defense, as described in Article 51. Iraq did not directly attack the United States. Therefore, the United States is acting believing attack was eminent, therefore launching a pre-emptive strike. It is unclear whether this is permissible under Article 51, however, it is possible that it is permissible under customary law, if the custom of preemptive force is still valid.

Moreover, President Bush has cited Humanitarian reasons for waging war with Iraq. The US has expressed the Iraq has ignored peremptory norms of general principles of humanitarian law, known as jus cogens. The United Nations charter does not define if or when the UN Security Counsel can take action against state’s violating humanitarian law. The UN charter does make clear that an independent state cannot intervene onto other sovereign governments. However, when the General Assembly debated this issue in 1999, some held that states are required to protect human rights. Perhaps an argument could be made that the United States was, in fact, exercising its own sovereignty by attempting to remedy these human rights violations, since human rights violations, in theory are universal and transcend sovereignty.

Once war has commenced, there are specific rules that a state must follow while acting in war. These rules are based on both custom and treaty and are known as Jus ad Bellum. The Paquette Habana symbolized that consistency was important in determining what constitutes customary norms in international law. While custom is at the heart of the laws of war, treaties have been ratified codifying, and sometimes contradicting, these rules of war. These treaties include, among others, the Hague Convention and the Geneva Conventions. Assuming a war is legitimate, the laws of war, also known as international humanitarian law, require that any military action attempt to protect civilian populations. The UN Charter, through Articles 48, 52 and 54, emphasize that the civilian population is to be protected at all times during war.

On March 26, 2003, a US bomb hit a marketplace. When considering whether this action is illegal due to custom and treaty law, one would have to consider if this loss of civilian life was “proportionate” to the goal of the US and its coalition forces. On March 31, 2002, US officials opened fire to a civilian van. Article 52 states that operations are to be directed “only against military objectives” and further explains that neutralization offers a “definite military advantage.” Perhaps the failure of the vehicle to stop created a danger to the forces, and thus stopping the vehicle was necessary. However, it would be important to consider what other tactics the forces tried before opening fire.

More likely, Iraq has violated the laws of war. The Geneva Convention prohibits the use of human shields. Even if Iraq is not a party to the Geneva Convention, they are still bound by custom unless they were a persistent objector to the prohibition of the use of human shields. Iraq used hostages as such in 1990 and it is likely that they may try to do so again. Iraq has also violated customary humanitarian law by placing land mines inside and around a mosque in Kadir Karam. Customary law not only is this a violation of the customary humanitarian law of using indiscriminant weapons, but this violations the customary humanitarian law of using places of worship in “support of the military effort.” Iraq has also violated the Geneva Convention by its treatment of POWs. The Nuremburg Tribunal, later recognized by the Geneva Conventions, the ill treatment of POWs is considered a war crime and a crime against humanity because it goes against “the elementary dictates of humanity.”



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